Hind Kumar Kohali vs Vimal Chand & Ors

Supervisory jurisdiction of this Court u/Art. 227 of the Constitution is invoked to assail the interlocutory order dated 18/5/2018 in C.S.No.141A/16 passed by the 8th Civil Judge Class-II, Gwalior (M.P.) by which the application u/O 6 Rule 17 CPC preferred by the defendant No.1(tenant) suffered dismissal on the ground of the defendant No.1 failing to exercise due diligence.

Learned counsel for the rival parties are heard.

In a suit for eviction and arrears of rent when the case was fixed for adducing of evidence of the plaintiffs, the defendant No.1 preferred an application u/O 6 Rue 17 C.P.C., dated 17/5/2018 vide P/2 seeking amendment in written statement for adding pleadings regarding subsequent event which took place on 16/5/2018 to the extent of the plaintiff/landlord throwing a bucket mixed with surf water creating muck on the floor of the shop in question with the ulterior motive of compelling the defendant No.1/tenant to vacate shop.

The plaintiffs/landlord responding to the said application denied the occurrence of the subsequent event dated 16/5/2018.

Learned trial judge declined to allow the said application of the defendant No.1 primarily on the ground of gaining impression that the defendant No.1 wants to delay trial as the application for amendment was moved a day prior to the date when the suit was fixed for adducing of evidence of the plaintiffs.

5.1   It is settled principles of law as reiterated by the Apex court in several of it's decisions that the criteria to be adopted for assessing the tenability of the application u/O 6 Rule 17 CPC for amending written statement is much more liberal than the one adopted in case of amendment to plaint. The decision of the Apex Court in case of Baldev Singh and Others Vs. Manohar Singh and another [(2006) 6 SCC 498] is worthy of reference wherein it was opined:-

"Let us now take up the last ground on which the application for amendment of the written statement was rejected by the High Court as well as the Trial Court. The rejection was made on the ground that inconsistent plea cannot be allowed to be taken. We are unable to appreciate the ground of rejection made by the High Court as well as the Trial Court. After going through the pleadings and also the statements made in the application for amendment of the written statement, we fail to understand how inconsistent plea could be said to have been taken by the appellants in their application for amendment of the written statement, excepting the plea taken by the appellants in the application for amendment of written statement regarding the joint ownership of the suit property. Accordingly, on facts, we are not satisfied that the application for amendment of the written statement could be rejected also on this ground. That apart, it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case."

5.2 Though it was disputed by the plaintiffs that the subsequent event which was foundation of the application for amendment to written statement did not take place but the fact remains that the said denial by the plaintiffs by itself cannot be sufficient to out-rightly reject the prayer for amendment lest the trial court would be pre-judging the issue of subsequent event.

5.3 Since the subject matter of amendment is based on subsequent event which took place after the suit was fixed for adducing of evidence after framing of issues, the question of bar contained in proviso to O.6 R. 17 CPC coming in way of the defendant No.1 to carry out amendment in written statement may not arise especially when the cross-examination of plaintiffs' witness has not yet started.

Consequently, this court is of the considered view that the learned trial court has failed to exercise it's jurisdiction vested in it u/O 6 Rule 17 CPC by rejecting the application for amendment filed by the defendant No.1-tenant.

Accordingly, the present petition u/Art. 227 of the Constitution stands allowed. The interlocutory order dated 18/5/2018 passed by the court-below rejecting application u/O 6 Rule 17 CPC preferred by the defendant No.1(tenant) is allowed and the defendant No.1 is directed to incorporate amendment in written statement within 15 (fifteen) days from today failing which the present order shall become otios.

No cost.